Relief for IP Rights Infringement Is Primarily Equitable: How American Legal Education Is Shortchanging the 21st Century Corporate Litigator

By Rounds, Charles E., Jr. | Santa Clara Computer & High Technology Law Journal, March 2010 | Go to article overview

Relief for IP Rights Infringement Is Primarily Equitable: How American Legal Education Is Shortchanging the 21st Century Corporate Litigator


Rounds, Charles E., Jr., Santa Clara Computer & High Technology Law Journal


INTRODUCTION

Unjust enrichment can be either an equitable or a legal wrong. (1) Restitution and injunction are Equity's principal remedies for that wrong. (2) Whether in Equity or at law, unjust enrichment is the basic principle on this side of the Atlantic that underlies the remedy of restitution, both generally and in the context of IP rights infringement. (3) In this article, intellectual property (IP) is employed as an umbrella term not only for property rights that flow from authorized monopolies on certain "creations of the mind" such as copyright, patent, and trademark, (4) but also from "comparable rights to control the use of any idea, expression, information, image, designation, or the like." (5) Rights to websites, confidential information, and data files would qualify under this broad definition of IP. (6) These rights, however, have to be enforceable in some court. There can be no unjust enrichment "unless the defendant has obtained a benefit in violation of the claimant's right to exclude others from the interest in question." (7)

The equitable remedy of restitution for unjust enrichment has been the American legal tradition's principal remedy for the infringement of IP rights. (8) "As the American economy completes its transition to a data economy, [it] will increasingly become the principal remedy" for the infringement of "economic interests" generally, at least on this side of the Atlantic. (9) Even the Federal statutes that define and regulate IP monopolies generally defer to and/or codify traditional principles of Equity when it comes to fashioning remedies for IP rights infringement. (10) There are some exceptions: "The most notable departure from restitution principles concerns the available remedies for patent infringement. The Patent Act of 1946 has been interpreted (although only since 1964) to foreclose a claim by the patentee to disgorgement of the infringer's profits." (11)

One who is unjustly enriched is unjustifiably enriched, that is to say there is no legal or equitable basis for the enrichment. (12) The donee of a valid gift is not unjustly enriched, absent special facts. (13) Neither is the party to a valid contract, absent special facts. (14) Neither is a judgment creditor who has prevailed in a properly brought tort action. (15) On the other hand, one who by gift, contract, or judicial process procures an economic benefit fraudulently is unjustly enriched. (16) So also is one who comes into possession of another's property by mistake. (17) A classic example of the latter is when a bank, by mistake, credits a checking account with a certain amount, perhaps as the result of a computer glitch. (18) The bank is entitled to debit the account for an equivalent amount. (19) If it were not the case, the owner of the account, even when innocent, would be unjustly enriched at the expense of the bank. There was no contractual basis for the deposit. Nor did the bank intend to make a gift to the account holder, and likely would not have had the authority to do so in any case.

The concept of restitution for unjust enrichment is a thread that is woven prominently throughout the entire fabric of the Anglo-American legal tradition. (20) It is also the principal monetary remedy for the infringement of IP rights in the 21st Century. (21) In one popular IP hornbook, however, it is mentioned only once, specifically in the context of a discussion of monetary relief for trademark infringement, and obliquely at that. (22) The authors refer to unjust enrichment without explanation as a "notion" and then move on, presumably on the mistaken assumption that most of their readers will be versed in core Equity doctrine. (23) While the assumption might have been warranted at one time, it is no longer. In 1879, Harvard Law School required that its students take 3 year hours of Equity, 1 year hour of Agency, and 2 year hours of Trust, a "year hour" being one hour per week per academic year. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Relief for IP Rights Infringement Is Primarily Equitable: How American Legal Education Is Shortchanging the 21st Century Corporate Litigator
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.